Miscalculated FMLA? Just let employee know

It’s easy enough to do. While calculating an employee’s remaining FMLA leave, you make a mistake and tell the employee he has to return by a certain day when in fact his leave expires earlier.

How can you fix the problem if you discover it while the employee is out on leave?

Just let him know that you made a calculation mistake and give him the correct information—before he has to return.

Here’s why it is important that you fix the problem: Employees are entitled to rely on the date you give if doing so is reasonable. By correcting the information, it becomes unreasonable to rely on the first, wrong date.

Recent case: Manuel Garcia took several FMLA leaves when he developed a serious illness. At the beginning of his third FMLA leave, his employer gave him a leave expiration date that hadn’t taken into account one of his earlier FMLA leaves.

When the company discovered the mistake, it called Garcia and sent him a certified letter with the correct return date. Garcia didn’t return by that corrected date, so he was terminated. He sued, alleging that he was entitled to rely on the first return date.

Not so, the court said. It ruled that Garcia would have been allowed to use the later return date if the company hadn’t corrected the mistake. But Garcia couldn’t claim he innocently relied on the first date since he got both a call and a certified letter correcting the date. The court tossed out the case. (Garcia v. Kinder Morgan, No. H-07-1081, SD TX, 2009)